11/17/2008

President-elect Barack Obama said in an interview broadcast Sunday that he was assembling his national security team as quickly as possible because there potentially could be “times of vulnerability” to terrorist attacks during White House transition periods.

In a wide-ranging interview on the CBS News program “60 Minutes,” Obama also said that capturing or killing Osama bin Laden remained a “critical aspect” of the war on terrorism.

“He is not just a symbol,” Obama said. “He’s also the operational leader of an organization that is planning attacks against U.S. targets.”

Without directly referring to the CIA’s offensive blitz of unmanned missile attacks in the tribal areas of Pakistan, the CIA boss said the US had successfully isolated the al Qaeda leader bin Laden, referring to him in the present tense.

“He appears to be largely isolated from the day-to-day operations of the organization he leads,” Hayden said in a speech delivered to the Atlantic Council in Washington.

Hmmm. So he’s an operational leader who is largely isolated from the day-to-day operations. Got it.

Wouldn’t that have been nice for the L.A. Times to have shared with us?

But you can’t criticize the President-Elect. Doing that might interfere with that vaunted giddy sense of boosterism — you know, the one Big Media feels now, but suppressed in its typically professional fashion during the campaign.

Law professor Brian Gray argues in this morning’s L.A. Times that California’s Proposition 8 may violate the federal Constitution — and that we could see a ruling to that effect some day, written by one Anthony Kennedy.

Is he right? The answer depends on whether you believe Justices Kennedy and O’Connor, on one hand — or Justice Scalia, on the other.

If you’re inclined to believe Justice Scalia, then Professor Gray may well be right: the U.S. Supreme Court might one day mandate gay marriage.

I’m not sure why Gray relies on the old case of Romer v. Evans, which declined to overrule Bowers v. Hardwick, rather than Lawrence v. Texas, which did. I think Gray is drawing a parallel between Proposition 8 and the measure invalidated in Romer, because each involved a statewide ballot measure to place in a state’s constitution a provision disfavoring gays. But whether Proposition 8 would be struck down depends much more on Lawrence than on Romer, because Lawrence went much further to defend the rights of gays.

So would the Court find Proposition 8 unconstitutional? It depends on who you believe. If you believe the justices in the Lawrence majority, they might not. If you believe Justice Scalia (in dissent), they definitely will.

In Lawrence, Justice Kennedy took care to say that the case’s holding would not necessarily extend to gay marriage — although Kennedy put this elliptically, using the following language:

The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.

In other words, it does not involve gay marriage.

Justice O’Connor, in her concurrence, was more explicit:

Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations–the asserted state interest in this case–other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.

In dissent, Justice Scalia said that the principles articulated in the majority opinion would necessarily mean approval of gay marriage down the road:

At the end of its opinion–after having laid waste the foundations of our rational-basis jurisprudence–the Court says that the present case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Ante, at 17. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court’s opinion, which notes the constitutional protections afforded to “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,” and then declares that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” Ante, at 13 (emphasis added). Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.

Count me among those in that hopeful crowd. I have said that I am a supporter of gay marriage, but I have also said I do not believe that goal should be accomplished through illegitimate judicial legislation.

I noted last week that Obama’s national security positions seem to be evolving closer to President Bush’s policies. The trend continues this week as two of his advisers confirmed Obama may not support war crime charges against those involved in authorizing or carrying out interrogation techniques like waterboarding:

“Two Obama advisers said there’s little – if any – chance that the incoming president’s Justice Department will go after anyone involved in authorizing or carrying out interrogations that provoked worldwide outrage.

The advisers spoke on condition of anonymity because the plans are still tentative. A spokesman for Obama’s transition team did not respond to requests for comment Monday.

Additionally, the question of whether to prosecute may never become an issue if Bush issues pre-emptive pardons to protect those involved.”

Compare that with what Obama said last April when reporter Will Bunch asked him where he stood on investigating the Bush Administration for war crimes:

“I mentioned the [waterboarding] report in my question, and said “I know you’ve talked about reconciliation and moving on, but there’s also the issue of justice, and a lot of people — certainly around the world and certainly within this country — feel that crimes were possibly committed” regarding torture, rendition, and illegal wiretapping. I wanted to know how whether his Justice Department “would aggressively go after and investigate whether crimes have been committed.”

Here’s his [Obama’s] answer, in its entirety:

“What I would want to do is to have my Justice Department and my Attorney General immediately review the information that’s already there and to find out are there inquiries that need to be pursued. I can’t prejudge that because we don’t have access to all the material right now. I think that you are right, if crimes have been committed, they should be investigated. You’re also right that I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt because I think we’ve got too many problems we’ve got to solve.

So this is an area where I would want to exercise judgment — I would want to find out directly from my Attorney General — having pursued, having looked at what’s out there right now — are there possibilities of genuine crimes as opposed to really bad policies. And I think it’s important– one of the things we’ve got to figure out in our political culture generally is distinguishing betyween [sic] really dumb policies and policies that rise to the level of criminal activity. You know, I often get questions about impeachment at town hall meetings and I’ve said that is not something I think would be fruitful to pursue because I think that impeachment is something that should be reserved for exceptional circumstances. Now, if I found out that there were high officials who knowingly, consciously broke existing laws, engaged in coverups of those crimes with knowledge forefront, then I think a basic principle of our Constitution is nobody above the law — and I think that’s roughly how I would look at it.”

The bottom line is that: Obama sent a clear signal that — unlike impeachment, which he’s ruled out and which now seems a practical impossibility — he is at the least open to the possibility of investigating potential high crimes in the Bush White House. To many, the information that waterboarding — which the United States has considered torture and a violation of law in the past — was openly planned out in the seat of American government is evidence enough to at least start asking some tough questions in January 2009.”

It sounds as if there may not be an investigation by the Attorney General regarding interrogation techniques if the statements by Obama’s advisers are accurate. Of course, this isn’t a final or definitive statement but it’s easy to engage in partisan attacks when your party is out of power. I suspect Obama and his advisers are having second thoughts about the downside of talking tough when the buck stops with them.

What about Janet Reno? Did she disconnect her phone and not leave a forwarding number?

The fact is that Obama is going to the WH only 4 years removed from the Illinois State Senate, and without having any kind of noteworthy “Kitchen Cabinet” of advisers and trusted aides that have been built up over the course of a political career.

Chicago politics where he was raised and nurtured is far too corrupt for him to bring to Washington. His other primary environ is academia — but he seems to recognize the perils of putting the stewardship of his administration in the hands of a bunch of people with no practical experience in the real world, much less governing, and with no track record of handling critical scrutiny from either the press or a political opposition.

So, rather than have an administration of “yes men” who don’t know their way around Washington or the national press corps, we instead get an “Administration of Rivals,” aka Clinton redux.

And before this post is swamped with a littany of “Clinton prosperity” comments, I’ll point out once again that which always seems to be overlooked about the economic prosperity of the Clinton years:

Clinton didn’t invent the internet, he just happened to be fortunate enough to occupy the WH when the internet began to be earnestly exploited for both its commercial and business potential. All the good economic fortune enjoyed during the two terms of Bill Clinton can be directly traced to the peace dividend that followed the end of the cold war, and the huge sums of money raised, spent, and then earned in the build-out and commercialization of the World Wide Web.

P.S. My list of Clintonistas comes from the top of my head. Please feel free to add to it in the comments. I’ll update this post with a running list as they are mentioned.

In the last election, enthusiastic Obama voters swept out virtually all Republican elected officials in Harris County (Houston) Texas. Kevin Fine is one of several Democratic state district judges voters elected and one of four judges who will oversee Houston’s drug courts, a once-a-week docket in addition to their regular judicial duties:

“Elected by Harris County voters as a state district judge this month, Fine said he’ll draw from his experiences as a cocaine addict who has been clean and sober for 10 years when presiding over felony cases.

“Every time I was coming down, I felt like the devil was reaching into my soul, stealing my heart,” he said of his days spent with drugs. The crumpled man in Jesus’ arms is a metaphor for the way he later faced his own skeletons and weathered the problems of addiction, said Fine, a criminal defense lawyer who will take the bench in January.

Fine believes he is qualified to help those who truly want to battle their own demons and says he’ll be able to spot the phonies.

His right arm is covered from shoulder to wrist in a sleeve of tattoos that mark various periods of his life, including the times he battled drugs and alcohol. “I’m probably the only district judge with this many tattoos,” he said. “At least the only one we know about.”

Fine, a Democrat, campaigned on his life experiences, saying they would make him a better judge than his rival, Republican incumbent Devon Anderson.

“She did a good job, but I’m more qualified in the hopelessness and futility of addiction,” Fine said.”

Fine claims he never appeared in court or met with a client while high but acknowledges his addiction problems started in in his teens and continued throughout his life, including alcohol and cocaine abuse as a practicing attorney. His goal as judge is to help defendants who really want to battle their inner demons “weather the storm” of drug addiction.

Using this Power Line post as a taking-off point, let’s discuss a possible bailout of one or more companies in the U.S. auto industry.

I wasn’t sure what to make of the bailout of the financial industry. The argument for unfettered capitalism was tougher there, because without action, innocent businesses were likely to go under due to a scarcity of credit.

The auto bailout strikes me as a different animal entirely. Either the automakers can put out a product that people want to buy, or they can’t. If they can’t, why should taxpayers pay money to ensure that these undesirable products remain on the market?

Naturally occurring forest fires are healthy because they clear out the deadwood, making catastrophic fires less likely. It’s temporary pain for long-term gain.

Similarly, we may need to see one of the automakers go under, for the long-term health of the industry.

That long post immediately below this one? Here’s the essence of what it’s about.

Former L.A. Times reporter Chuck Philips wrote a front-page story saying some guy was innocent of murder. Except that there’s all sorts of evidence showing the guy isn’t innocent.

The L.A. Times had a lot of that evidence, but didn’t publish it.

One of the pieces of evidence was a civil deposition the murderer gave. I have a copy here.

In that deposition, the guy said he was framed for murder by the same guy who killed both Biggie Smalls and Tupac Shakur. This made the murderer sound, I don’t know . . . kind of like a guy spinning tall tales. Like a cheap con artist.

The L.A. Times had that deposition. But they didn’t report the parts that made their oh-so-innocent guy sound like a cheap con artist. Instead, they reported a bunch of other stuff from the deposition, and played it up to make it sound credible.

The stuff they reported benefited Suge Knight — a guy Philips has been accused of being wayyy too close to.

Oh, and the guy’s claim of innocence may also be predicated on forged or phony documents.

That’s about it. Now, if you’re ready, go back and read the whole thing — or as much as you can slog through.

P.S. Oh . . . I should also mention that the FBI has apparently been investigating allegations that Philips smuggled messages from Suge Knight to the imprisoned murderer. I have new information on that, too.

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